Basics of Bankruptcy Discharge and Domestic Support Obligations

On occasion, a divorce may result in one or both of the parties filing for bankruptcy, often without an adequate understanding of the limited relief available in the bankruptcy court. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) directly addressed issues related to the dischargeability of marital debt and support obligations, as well as to the effect of the automatic stay on collection and enforcement proceedings out of divorce and family law litigation.

Under bankruptcy law, a “domestic support obligation” is any debt incurred before or after a bankruptcy filing that is owed to or recoverable by a spouse, former spouse, child or governmental unit; in the nature of alimony, maintenance or support; and established pursuant to the terms of a divorce decree, separation agreement, property settlement agreement, court order or administrative determination.

In Chapter 7 bankruptcy, essentially all marital and domestic relations obligations are not dischargeable, regardless of whether they are support in nature, property divisions or “hold harmless” agreements, provided they were incurred by the debtor in the course of a matrimonial proceeding or a divorce action which resulted in a separation agreement, divorce decree, court order or administrative determination.

A debtor’s obligation to pay marital debts directly to a third party ( ie., pay the mortgage on former marital residence) and to hold the former spouse harmless on said debts is also deemed to be non-dischargeable if the obligation has the effect of providing support to the former spouse. A debtor’s duty to pay the following expenses are usually deemed to be in the nature of support and not dischargeable: educational expenses of a minor child; medical insurance coverage for a minor child; and life insurance, with the minor children as beneficiaries.

Attorney’s fees owed by debtor to his own lawyer are clearly dischargeable in bankruptcy, but as a general rule, attorney’s fees owed by debtor to a former spouse’s attorney are not dischargeable, if the underlying legal proceeding resulted in the entry of an order or judgment directing payment of maintenance or spousal support to the former spouse.

The division of a debtor’s pension benefits during the divorce action is usually accomplished by entering a Qualified Domestic Relations Order (“QDRO”). Since division of a pension is considered to be a transfer by debtor of a present interest in his pension, and as such, it is not a debt that can be discharged in bankruptcy.

In Chapter 13 bankruptcy, past due domestic support obligations owed by a debtor are not dischargeable, unless they are paid in full over the life of the Chapter 13 plan. However, if a debt created by a separation agreement or judgment of divorce is not in the nature of support, it sometimes can be discharged in Chapter 13 without being paid in full.

For a Chapter 13 Plan to be confirmed by the Bankruptcy Court, it must: pay in full to the former spouse all domestic support obligations owed by debtor at the time of the bankruptcy filing, and the debtor must be current on all domestic support obligations incurred after the bankruptcy filing.

A Chapter 13 Plan, even if confirmed by the bankruptcy court, is subject to dismissal if the debtor fails to pay any post-petition or post-confirmation domestic support obligations, and a Chapter 13 discharge will not be entered by the bankruptcy court unless and until a debtor certifies that all domestic support obligations have been paid and that the debtor is current on such obligations.

The automatic stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding to establish paternity; to establish or modify a child support order, determine child custody or visitation issues, or dissolve a marriage, except to the extent that such proceeding may seek to determine a division of marital property in which the bankruptcy estate also has an interest. In those situations, the divorce can be granted without first obtaining relief from the automatic stay, but the marital property cannot be divided without obtaining such relief.

The automatic stay also does not prevent the post-petition collection of domestic support obligations such as alimony or child support from any property belonging to the debtor, providing that the bankruptcy estate does not also have an interest in the same property; from automatic wage deduction orders created by a statute or judicial or administrative order; from the interception of debtor’s federal or state income tax refunds, or
from the withholding, suspension or restriction of a debtor’s driver’s license or professional or occupational license. Therefore, Bankruptcy Court does not offer much protection for someone seeking to avoid the domestic support obligations.

The above rules will apply to the proceedings in New York State courts. In Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), the Appellate Division had to address a situation where one of the parties was seeking to enforce a counsel fee award after the other party filed for bankruptcy. In Ross, multiple violation petitions had been filed by the parties over the course of several years. In August 2006, Family Court upheld mother’s motion for counsel fees and directed father to pay $5,000 of the mother’s counsel fees. Father filed for a Chapter 7 bankruptcy thereafter, and listed the award of counsel fees as an unsecured debt. Father’s bankruptcy was discharged in January 2007. Mother brought a violation petition which alleged that father failed to pay the counsel fees. Father moved to dismiss petition on ground that he discharged counsel fee award in bankruptcy. The Appellate Division stated that state and federal courts have concurrent jurisdiction over issue of dischargabilityof a particular debt and held that domestic support obligations in the nature of support are exempt from discharge in bankruptcy. While father contended that counsel fees incurred were for custody and visitation proceeding, the record reveals that mother’s initial petition commencing the proceeding raised issues of financial need and hardship. According to the Appellate Division, term “in the nature of support” is broadly interpreted in the context of discharge of debt obligations in bankruptcy and held that the award of counsel fees was in part in the nature of support, and as such, exempt from discharge in bankruptcy.

Paying for College – A Requirement Under the Child Support Standards Act?

Prior to the enactment of the Child Support Standards Act, contained in Family Court Act §413 and Domestic Relations Law §240, the courts had held that the provision of a college education to one’s minor children was not a necessary expense for which a parent could be obligated in the absence of a voluntary agreement or special circumstances. Haessly v. Haessly, 203 A.D.2d 700 (3d Dept. 1994). However, recent case law recognized that special circumstances, which involve the educational background of the parents, the child’s academic ability, and the parents’ financial ability to provide the necessary funds, continue to be relevant factors in applying the standard set forth by the Legislature in the Child Support Standards Act for determining whether an award for college expenses is appropriate.

It is clear that the Court has the power to order a parent to pay his child’s educational costs even though the parties’ settlement agreement is silent on that issue. Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005); McDonald v. McDonald, 262 A.D.2d 1028 (4th Dept. 1999). As aptly noted in Mrowka v. Mrowka, 260 A.D.2d 613, 613 (2d Dept. 1999), “Although the parties’ stipulation of settlement was silent as to the costs of college, this does not necessarily mean that an agreement was reached pursuant to which college costs would not constitute a component of the parties’ obligation to pay child support.”

According to the Appellate Division, Fourth Department, Fruchter v. Fruchter, 288 A.D.2d 942, 943 (4th Dept. 2001), the Child Support Standards Act authorizes an award of educational expenses where warranted by the best interests of the children and as justice requires, upon a showing of “special circumstances”. Relevant factors include the educational background of the parents, the child’s scholastic ability, and the parents’ ability to provide the necessary funds. Id.

In Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005), the Appellate Division, the Fourth Department, rejected the father’s contention that Family Court improperly denied his objection to an order requiring him to pay half of his daughter’s educational expenses. The Fourth Department held that the support magistrate properly determined that the petitioner-mother was unable to meet the child’s educational needs on the income and support that she was receiving, and that the respondent-father had the ability to pay support. Id.

Therefore, even if the parties have a separation agreement that is silent on the issue of paying for college, they may be directed to pay for their child’s college education by the court.

Child Support, Abandonment and Constructive Emancipation of a Child

I am asked occasionally whether a parent’s child support obligation can be terminated on the grounds that the child stopped all contact with the parent in order to avoid parental control. My usual response is that it can be done, but the parent must establish either abandonment or constructive emancipation, and faces a substantial burden of proof.
The Family Court Act §413 mandates that parents support their children until they reach the age of 21. The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal, and that a parent may impose reasonable regulations. Generally, where a minor of employable age and in full possession of her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control, the child forfeits his/her right to demand support. Roe v. Doe, 29 N.Y.2d 188 (1971); Matter of Ontario County Department of Social Services (Christopher L.) v. Gail K., 269 A.D.2d 847 (4th Dept. 2000), leave denied, 95 N.Y.2d 760 (2000).
While the duty to support is a continuing one, the child’s right to support and the parent’s right to custody and services are reciprocal. Roe v. Doe, 29 N.Y.2d 188 (1971). Thus, a parent, in return for maintenance and support, may establish and impose reasonable regulations for his/her child. In Roe v. Doe, supra, the Court of Appeals explained:

Accordingly, though the question is novel in this State, it has been held, in circumstances such as here, that where by no fault on the parent’s part, a child “voluntarily abandons the parent’s home for the purpose of seeking its fortune in the world or to avoid parental discipline and restraint [the child] forfeits the claim to support” . . . To hold otherwise would allow, at least in the case before us, a minor of employable age to deliberately flout the legitimate mandates of her father while requiring that the latter support her in her decision to place herself beyond his effective control.

The doctrine of constructive emancipation is applicable to the non-custodial parent where the child unreasonably refuses all contact and visitation. Matter of Commissioner of Social Services (Jones) v. Jones-Gamble, 227 A.D.2d 618 (2nd Dept. 1996). In that case, the court held that the evidence clearly established that the child wanted no relationship with her father. Despite the father’s prior support payments, there was essentially no parent-child relationship between them. The appellate court held that, to require the father to provide reimbursement for the support of a daughter who had renounced and abandoned him would have clearly resulted in an injustice under the facts of that case.
In the Fourth Department case, Perez v. Perez, 239 A.D.2d 868 (4th Dept. 1997), appeal dismissed, 91 N.Y.2d 956 (1998), the record established that the parties’ 18 year old daughter had refused to visit with the father or to have any relationship with him. That child was found to be a minor of employable age and in full possession of her faculties, who had voluntarily refused to have a relationship with plaintiff. The child thereby forfeited her right to support from her father. Accordingly, the Fourth Department rejected the mother’s contention that the lower court erred in modifying the parties’ divorce decree by suspending father’s obligation to pay child support for the parties’ child until further order of the court.
Children of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support, even if they are not financially self-sufficient. Guevara v. Ubillus, 47 A.D.3d 715 (2nd Dept. 2008). In that case, petition for child support was denied where the petitioner, without good cause, abandoned the mother’s home on her 18th birthday in order to avoid parental control and to gain independence from her mother’s restrictive household rules; the petitioner was found to have abandoned her mother’s home against the mother’s will and without cause.
In Rubino v. Morgan, 224 A.D.2d 903 (3d Dept. 1996), the Appellate Division held that the lower correct properly terminated the father’s support obligation on the grounds that his daughter’s refusal to visit with him and the child’s unprovoked rejection of him constituted abandonment. The Third Department noted that at the time of the hearing, the daughter was 17 years old, and she had refused to visit with the father since she was 14 years old. Even after the daughter refused to visit with her father, he continued for years to send letters and cards to her. The letters were never answered. He also attempted to talk with the child, without success. His actions and requests were not arbitrary, and there was no evidence of malfeasance, misconduct or neglect. The Appellate Division upheld the lower court’s findings that the daughter chose to permanently breach her relationship with the father, notwithstanding her generalized claim of “emotional abuse”, and that the father did not contribute significantly to his daughter’s decision to distance herself from him.
Furthermore, where it can be established by the non-custodial parent that the custodial parent has unjustifiably frustrated the non-custodial parent’s right of reasonable access, child support payments may be suspended. Usack v. Usack, 17 A.D.3d 736 (3d Dept. 2005). In that case, the father had encouraged the children’s unbridled enmity toward, and total exclusion of, their mother through a course of conduct calculated to inflict the most grievous emotional injury upon her. The Appellate Division held that mother’s child support obligation should have been suspended due to the father’s deliberate actions in alienating the parties’ children from her.

Opt-Out Agreements and the Scope of the Child Support Standards Act

If parties choose to deviate from the provisions of the Child Support Standards Act with respect to the child support paid, such deviation will be upheld by the court provided the parties complied with such formalities as including calculations of the presumptive child support amount and the reasons for deviating from the CSSA. However, the parties frequently choose not only to deviate from the child support amount calculations, and add-ons such as child care and health care costs, but also to make recalculations of child support an annual or semi-annual event, or to include other items not included within the scope of the CSSA.

In Fasano v. Fasano, 43 A.D.3d 988 (2nd Dept. 2007), the parties included an annual cost-of-living-adjustment (“COLA”), with respect to the child support paid by the non-custodial parent. The Second Department found that the parties to the agreement did not opt out of the CSSA standards with respect to basic child support, but that the COLA provision included in the agreement represented potential future deviations from the CSSA basic child support obligation. The agreement did not state the reasons for including the COLA provisions. The Appellate Division held that the COLA provision represented an opt-out from the CSSA and was directly related to the child support. Since the reasons for including the COLA provision were not included in the agreement, the opt-out was invalid. The court vacated the COLA provision, while the basic child support provision of the agreement was not vacated.

However, not all provisions dealing with financial support of the children are considered to be within the scope of the CSSA. In Cimons v. Cimons, 53 A.D.3d 125 (2nd Dept. 2008), the Second Department held that the obligation to provide for the future college expenses of the children was not part of the parties’ basic child support obligation and therefore was not subject to the CSSA requirement that any deviation from statutorily-mandated child support obligations must be recited and explained in a stipulation of settlement. While the parties’ agreement regarding basic child support violated the CSSA by failing to recite and explain the reasons for the deviation, the provision concerning future college expenses was enforceable. The court held that unlike the basic obligation to provide child support, payment for a child’s college education is not mandatory. Absent a voluntary agreement, a parent might be required to provide support for his or her child’s attendance at college, but the determination of that obligation is dependent upon the exercise of the court’s discretion in accordance with Domestic Relations Law §240(1- b)(c)(7). The court further noted that the determination as to which additional aspects, if any, of the parties’ stipulation must be vacated along with the basic child support provision depends on the circumstances of the particular case and the nature of the obligations addressed in the other provisions of a stipulation. Some provisions may be so directly connected or intertwined with the basic child support obligation that they necessarily must be recalculated along with the basic support obligation. It found that unlike child care expenses and unreimbursed health care expenses, education expenses were not directly connected to the basic child support calculation and did not require the appropriate opt-out language.

The above cases represent the dangers involved any time the parties attempt to either opt-out from the CSSA or attempt to include items outside of the scope of the CSSA in their agreement. Any such agreement must be carefully drafted to make sure that it is not subsequently challenged and invalidated.

Bankruptcy and Divorce

When your ex-spouse files for bankruptcy, all efforts to collect any debts have to stop unless they fit within one of the exceptions in the bankruptcy statute. This is known as the “automatic stay.” One exception to the automatic stay is the one that allows the commencement or continuation of a proceeding to establish or modify a support award or collect support from property that is not property of the bankruptcy estate. 11 U.S.C. 362(b)(2).

Current support debts survive a bankruptcy without the need for you to have to go to bankruptcy court. Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, among the changes in creditor priority is that unpaid child support and alimony has priority over any other creditor, including taxes owed. If you are owed back support it is very important that you file a “proof of claim” with the bankruptcy court to receive payment.

The bankruptcy law requires the trustee in bankruptcy, if there is a claim for a domestic support obligation in a case, to provide written notice to the party to whom the domestic support obligation is owed, and to the state’s Child Support Enforcement Agency. A notice at the time of filing and a second notice at the time of discharge are required. In the notice to the creditor, the trustee must provide contact information for your state’s Child Support Enforcement Agency.

The new bankruptcy law made non-support obligations from a divorce or separation non-dischargeable in a chapter 7 bankruptcy, if the discharge of the obligation would harm the spouse to whom the obligation is owed more than it would harm the person who owes it, your ex-spouse. 11 U.S.C. 523(a)(15). A debt that is non-dischargeable means that your ex-spouse is still responsible for it. You would need to file a complaint in bankruptcy court to get the property settlement debt excepted from discharge. If you don’t file a claim with the bankruptcy court, the debt may be wiped out and you won’t be able to collect it later.

The discharge in a chapter 13 case is somewhat broader than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts arising from property settlements in divorce or separation proceedings.

How do bankruptcy courts decide what’s a support obligation and what’s a property settlement? The courts have based their decisions on such questions as:

Does the obligation terminate or reduce with the occurrence of certain events, like remarriage or a child turning 18?
Is the obligation in installments or a lump sum?
Are there minor children?
What is the relative health and education of the parties?
Was there a need for support at the time of the divorce?

The way in which the judgment of divorce is drafted can reduce the chance that the bankruptcy court will discharge the debt. The likelihood that the debt will not be discharged by labeling the debt payments as either support or alimony in the decree.

If you’re listed as a creditor on your ex-spouse’s bankruptcy petition, you should receive notice from the bankruptcy court of the filing and information about the date and time of the first meeting of creditors (known as a “341 meeting”). You should also receive information on the deadline for filing a claim and a proof of claim form for filling out.

Failure to Pay Child Support and Federal Criminal Liability

In a case of first impression, defendant, the father of twin daughters, was convicted by a jury in the Federal Court for the Southern District of New York of two counts of willful failure to pay a court ordered child support obligation in violation of 18 USC §228(a). One of the questions of first impression for the Second Circuit Court of Appeals was “whether violation of a single child support order which covers two children gives rise to one or two violations of 18 USC §228.” Conviction is affirmed on one count, vacated on the second, and the matter remanded for resentencing. When Congress leaves a statute ambiguous as to the proper unit of prosecution, “the ambiguity should be resolved in favor of lenity.” Here, because the statute does not clearly distinguish between a “support obligation” and a “court order,” defendant’s willful failure to comply with the underlying order of support for his two daughters justifies the prosecution of only one count for willfully violating an order of support, rather than two counts for failing to pay support for his twin daughters. USA v. Kerley. Decided 9/25/08.

Family Court and Willful Failure to Pay Child Support

There is a presumption, applicable to child support enforcement proceedings in Family Court that a party, against whom a child support order was issued, has sufficient means to support his/her minor children. See Family Court Act § 437. The evidence that the party directed to pay child support has failed to pay support as ordered, constitutes “prima facie evidence of a willful violation”. Family Court Act § 454(3)(a). Once the petition alleging willful violation of a child support order was filed in the Family Court, the burden then shifts to respondent to adduce some competent, credible evidence of his/her inability to make the required payments. If the requisite showing is not made, the party will be found to have willfully failed to pay child support. Once this finding is made, the party is liable to a range of penalties, including attorneys fees and possible incarceration.

This presumption does not apply to child support enforcement proceedings brought in Supreme Court under the Domestic Relations law. If an enforcement proceeding is brought in Supreme Court, the usual remedies sought are a judgment for any unpaid arrears, attorneys fees and, possibly, a finding of contempt. The burden of proof applicable to contempt proceedings is much higher than that applicable to the proceedings brought under Family Court Act § 437.

Calculations of Child Support in New York

The New York courts use a statutory guidelines to determine what child support amount the non-custodial parent is obligated to pay. The guidelines as applicable to the Supreme Court in actions for separation and divorce are contained in Domestic Relations Law §240 and its counterpart for the Family Court is contained in Family Court Act §413. New York child support amounts are based partly on the non-custodial parent’s adjusted gross income and partly on how many children are on the order. The court determines the non-custodial parent’s gross income, and then deducts from that amount Medicare, social security tax, New York City or Yonkers tax, and other allowable deductions to establish the non-custodial parent’s adjusted gross income. An identical calculation is performed with respect to the income of the custodial parent. The court then multiplies the combined adjusted gross income by the standard guideline percentage for the number of children. These percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. Subsequently, that child support amount is multiplied by the ratio of non-custodial parent’s adjusted gross income to the combined adjusted gross income.

The standard guideline is applied to most parental earnings up to $80,000 (minus certain local and social security tax amounts). This includes any worker’s compensation, disability payments, unemployment benefits, social security payments, and many other forms of income. Beyond $80,000, the courts determine whether or not to use the percentage guidelines, and may consider other factors in determining the full support amount.

The State of New York provides for interest on missed payments and adjudicated arrears at a rate of 9% per year, but only on arrearages reduced to a money judgment by the courts.

New Child Support Surcharge

New York has recently made changes to its child support enforcement statutes to comply with the new federal requirements. Changes to the fee for child support enforcement services followed a new federal requirement. The states are required to charge an annual fee of $25 in every child support case in which $500 is collected during the federal fiscal year. The fee applies only to those for whom the support is being collected and who never received public assistance. For those who have received pubic assistance, the statute increases the pass-through charge from $50 to $100, as of Oct. 1, 2008, and to $200 as of Jan. 1, 2010, when two or more children are involved.

Criminal Penalties Related to Child Support

New York has recently amended two sections of the Penal Law, §260.05 and §260.06, which make it a crime for a parent to voluntarily reduce his or her income, terminate employment or fail to seek employment to circumvent an order of child support. Specifically, §260.05, non-support of a child in the second degree, provides that:

A person is guilty of non-support of a child when:

1. being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he or she fails or refuses without lawful excuse to provide support for such child when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment; or
2. being a parent, guardian or other person obligated to make child support payments by an order of child support entered by a court of competent jurisdiction for a child less than eighteen years old, he or she knowingly fails or refuses without lawful excuse to provide support for such child when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment.

Penal Law §260.06 makes such failure to support a felony if a person was convicted of violating Penal Law §260.05 within the last 5 years. Such charges are available in conjunction with other remedies available to the recipient of child support under the Family Court Act, the Domestic Relations Law and the Judiciary Law. Both sections take effect on November 1, 2008.